Mehmet v Sims Aluminium Pty Ltd
[2013] VCC 590
•29 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03496
| IRFAN MEHMET | Plaintiff |
| v | |
| SIMS ALUMINIUM PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23 and 24 April 2013 | |
DATE OF JUDGMENT: | 29 May 2013 | |
CASE MAY BE CITED AS: | Mehmet v Sims Aluminium Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 590 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury application – injury to the cervical spine – psychiatric injury – loss of earning capacity and pain and suffering
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37)(a) and (c)
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Church v Echuca Regional Health (2008) 20 VR 566; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Brumar (Vic) Pty Ltd v Norris; Brown v Cashman (2010) 28 VR 665; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Petkovski v Galletti (1994) 1 VR 436; Giankos v SPC Ardmona Operations Limited [2011] VSCA 121
JUDGMENT – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with Mr M Clarke | Slater & Gordon |
| For the Defendant | Mr J Batten | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant on 12 October 2005
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as set out in s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The body function relied upon in this application under subparagraph (a) is injury to the cervical spine; and in relation to subparagraph (c), the mental disorder is a Chronic Major Depressive Disorder with Anxiety, with what has been described as mood congruent paranoid psychotic features.
6 The plaintiff relied upon two affidavits, sworn on 24 February 2012 and 26 February 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or his evidence. However, I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[2]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
[3]Barwon Spinners (supra) at paragraph [33]
(c) “the consequences” to the plaintiff of his impairment to the cervical spine in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked, and as being at least very considerable”;[4]
(d) “the consequences” to the plaintiff of his Major Depressive Disorder with Anxiety and paranoia in relation to “pain and suffering” or “loss of earning capacity” must be “severe” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[5]
[4]s134AB(38)(b) and (c)
[5]s134AB(38)(b) and (c)
9 The judgment of the Court of Appeal in Mobilio v Balliotis[6] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[7] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, Brooking JA said that “severe” was used in the definition as a stronger word than “serious”.[8]
[6][1998] 3 VR 833
[7](1995) 21 MVR 314
[8]Mobilio v Balliotis [1998] 3 VR 833 at 846
10 Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in s93(17)(c) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[9]
[9]supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
11 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[10]
[10]s134AB(19B) and 38E of the Act
(a) that at the date of hearing he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[11]
[11]s134AB(38)(e)(i) of the Act
(b) that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more,[12] and
(c) that even with rehabilitation and retraining he will still sustain a loss of 40 per cent or more.[13]
[12]s134AB(38)(e)(ii) of the Act
[13]s134AB(38)(a) of the Act
12 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[14]
[14]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at pararaph [63]
13 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
14 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
15 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[15]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[16]
[15]s134AB(38)(j) of the Act
[16] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
16 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
17 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[17] and Grech v Orica Australia Pty Ltd[18]
[17]supra
[18](2006) 14 VR 602
The Issues
18 Counsel for the defendant informed the Court that the following matters were in issue:
(a) Identification of injury – the defendant submitted that the plaintiff sustained a minor aggravation of pre-existing constitutional degenerative changes in the cervical spine, the effects of which he had substantially recovered from by the time he was medically examined by Mr Michael Shannon in April 2007. The defendant does not accept that the plaintiff’s psychiatric condition is a sequelae to the physical injury.
(b) Disentanglement – the plaintiff is required to strip away the psychological consequences which relate to the mental illness from the limb (a) consequences said to relate to the physical injury. Similarly, the plaintiff is required to disentangle the physical consequences that are claimed to flow from the physical injury when determining whether the mental illness meets the severe behavioural disorder or disturbance test.
(c) Causation – the defendant does not accept that the plaintiff’s current physical presentation results from a physical injury. Further, the defendant does not accept that the claimed psychological reaction to the physical injury is causally related to the aggravation sustained to the cervical spine.
(d) Credit is in issue. The plaintiff’s memory is convenient and selective. Unless corroborated, the defendant submitted that the Court should not find the plaintiff a credible witness.
(e) The defendant submitted that this is a “range case”, that is, the consequences of the aggravation injury to the plaintiff’s cervical spine are minimal and do not meet the very considerable test. Further, upon proper analysis the plaintiff’s underlying mental illness, does not meet the higher test of “severe” consequences.
(f) Finally, in respect to loss of earning capacity, the defendant submitted the plaintiff was offered work as a weighbridge control box operator. The plaintiff unreasonably failed to participate in a rehabilitation program and suitable duties on a return to work program. The plaintiff chose not to participate in the return to work program with the defendant, as he wanted to work in the family business in Canberra.
Investigations
19 On 24 April 2006, a CT scan of cervical spine concluded:
“1moderate left C2-3 neural exit foraminal stenosis due to encroachment by degenerative and plate osteophyte;
2moderate right C5-6 foraminal stenosis;
3moderate posterior central disc prolapse at C4-5 causing mild central canal stenosis indenting the anterior aspect of the spinal cord. Mild C3-4 posterior disc bulge.”
20 On 27 June 2006, an MRI scan of the cervical spine concluded:
“1spondylitic ridging at C3/4, C4/5 and C5/6, worse at C5/6, particularly on the right.
2moderate narrowing of the left C6/7 neural foramina and
3right C5/6 with mild narrowing of the left C4/5 neural foramina.”
21 On 22 December 2006, an MRI scan of the cervical spine showed:
“1moderate left C2/3 bony foraminal stenosis which could impinge onto the left C3 nerve root;
2mild central disc bulges or prolapses at C3/4 and C4/5 without nerve root compression;
3a right paracentral C5/6 disc prolapse associated with moderate bony foraminal stenosis on the right which could impinge onto the right C6 nerve root.
4moderate severe left C6/7 bony foraminal stenosis.”
The Plaintiff’s medical evidence
Dr Craig Smith
22 Dr Smith, the plaintiff’s general practitioner, provided medical reports dated 19 June 2006, 30 August 2007, 28 September 2011 and 15 April 2013. The plaintiff was first seen on 19 October 2005 complaining of pain in his neck and left shoulder which had been present for one week. The plaintiff related the pain to a lifting incident at work when he was required to lift approximately 100 aluminium ingots weighing approximately 8 kilograms each. He developed pain in his neck which radiated to his shoulder. On examination, the plaintiff had pain and tenderness in his neck with a restricted range of movement. Neurological examination was normal. He was given Voltaren and advised to commence physiotherapy. A medical certificate for one day only was given.
23 On 11 April 2006, the plaintiff complained of increasing neck and left shoulder pain which had been present since 12 October 2005. The plaintiff was working normally but was finding it increasingly difficult. On examination, he had a good range of neck movement and neurological examination was normal. He was prescribed Celebrex.
24 In September 2011, Dr Smith said he was surprised that the plaintiff was able to continue working initially, given the physical nature of his employment duties. Dr Smith said the plaintiff had made several genuine, but unsuccessful and short-lived, attempts to return to light duties. He said the pain had improved since the original injury but was severe enough to prevent him working and limited his daily activities. It was Dr Smith’s view that the plaintiff should avoid heavy lifting for the rest of his life. He said the plaintiff remained unfit for work, which incapacity was likely to be indefinite.
25 In April 2013, Dr Smith said he had continued to be intermittently involved in the plaintiff’s treatment. The plaintiff had spent the majority of his time since 2011 in Canberra, with visits to Melbourne, but had returned to Melbourne permanently. He said there was no significant change in the plaintiff’s condition over the last few years. The plaintiff suffers neck pain daily and is very limited in his activities. He requires analgesia and has largely learnt to tolerate his pain. He suffers significant Depression and Anxiety and remains on Lithium, Seroquel and Abilify. Dr Smith said the pain and resulting incapacity impact on most of the plaintiff’s daily activities away from work. He is unfit for work generally and has no current work capacity. The plaintiff has no capacity for pre-injury duties. He said his prognosis was poor. He said heavy lifting should be avoided.
26 Dr Smith said that the plaintiff remains in chronic pain, debilitated by significant Depression and Anxiety which are secondary to the cervical disc prolapse. He remains unfit for work and has a poor prognosis.
Mr David Bergin
27 In July 2006, Mr Bergin, physiotherapist, reported that he first saw the plaintiff on 30 November 2005 when he presented with persisting left scapular pain following an incident at work two months previously. The plaintiff had returned to his original duties. On examination, he had signs of left lower cervical and upper thoracic facet joint disruption, giving rise to left scapular and pectoral pain. Mr Bergin thought there may be some disc involvement in his presentation. He was treated on ten occasions over the next three months.
28 When last seen on 17 February 2006, the plaintiff reported mild residual left scapular pain and persistent restrictions of cervical mobility into left rotation and left lateral flexion. Mr Bergin said the plaintiff’s symptoms and findings were consistent with the workplace incident he described.
Dr Jude Ugwu
29 On 7 July 2006, Dr Ugwu, general practitioner at Occ West, reported that the plaintiff was examined on 27 October 2005 complaining of left shoulder pain of two weeks’ duration. The plaintiff reported marked exacerbation of shoulder pain following physiotherapy treatment the day before as a result of a work injury. He provided a history of shoulder pain six years earlier from which he obtained complete resolution. The plaintiff was prescribed Voltaren gel and commenced on work restrictions.
30 By 16 November 2005, Dr Ugwu reported that the plaintiff had a full range of movement of the neck and shoulder and was discharged.
31 In March 2006, the plaintiff complained of neck and shoulder pain and was prescribed Nurofen tablets. Dr Ugwu reported that the range of movement of the neck decreased to 75 per cent in all directions and his symptoms continued. Dr Ugwu said the plaintiff did not give a history of neck injury during the course of his employment and there was no clear relationship between his employment and the degenerative changes noted on imagining studies. He said the tenderness in the plaintiff’s muscle masses could be attributed to strain injuries and were consistent with his work as a labourer. He did not review the worker after March 2006.
Mr Tiew Han
32 Mr Han, consultant neurosurgeon, saw the plaintiff on referral on 31 May and 12 July 2006, January 2007 and in October 2010. Mr Han said the plaintiff complained of neck pain and left arm pain and reported the work injury of 12 October 2005. Mr Han arranged for an MRI scan, which was performed in June 2006. Mr Han said the plaintiff had central disc protrusions at C3-4, C4-5, C5-6 and C6-7 levels. Mr Han said the plaintiff’s injury was a direct result of his employment. He said the plaintiff had no capacity for pre-injury duties and was unable to perform any repetitive heavy lifting.
33 In October 2010, Mr Han reviewed the plaintiff when he presented with neck pain and bilateral shoulder pain. Mr Han said the plaintiff’s symptoms appeared to have deteriorated compared to 2007. In March 2011, Mr Han said the plaintiff’s symptoms are constant in his neck and sometimes down his arm. He recommended to the defendant’s insurer the plaintiff undergo an anterior cervical discectomy and fusion at the C4-5 and C5-6 levels.
Medical Panel Certificate of Opinion
34 On 27 October 2006, the Medical Panel was of the opinion that:
·the plaintiff was suffering from an aggravation of cervical spondylosis relevant to the claimed injury;
·that the plaintiff’s employment could possibly have been, and was, in fact, a significant contributing factor to an aggravation of pre-existing cervical spondylosis;
·the plaintiff’s incapacity for work is materially contributed to by the claimed injury.
Dr Fatmar Lowden
35 Dr Lowden, psychiatrist, saw the plaintiff on referral from his general practitioner, Dr Smith, on six occasions in Canberra, followed by phone consultations. Dr Lowden said the plaintiff had a five-year history of worsening Depression and Anxiety following a work injury. Dr Lowden diagnosed Chronic Major Depression and Anxiety with mood congruent psychotic features. She said the benefits of treatment were the plaintiff had not needed hospital admission, the containment of his suicide risk which had become worse, and the ability to learn to live with his pain and Depression as best he can. Medication was prescribed.
36 Her prognosis was guarded. She said the chronicity of his pain and psychiatric condition are negative prognostic factors. She said his progress needs to be monitored with regular mental state examinations, cognitive testing, brief physical examination to check blood pressure, pulse and neurological side effects of his medication.
37 It was her opinion that the plaintiff will require psychiatric treatment with the combination of medications and psychotherapy, indefinitely.
Dr David Weissman
38 In February 2013, Dr Weissman, psychiatrist, examined the plaintiff at the request of the plaintiff’s solicitor. Dr Weissman diagnosed a Chronic Major Depressive Disorder of moderate intensity or severity relevant to the plaintiff’s employment.
39 In relation to treatment, Dr Weissman said the plaintiff should continue to see his general practitioner for supportive therapy, remain on his anti-psychotic medications, as prescribed, and resume taking antidepressant tablets, given his level of Depression. He said the plaintiff should be seeing a consultant psychiatrist on a regular basis, perhaps two-monthly.
40 In relation to the plaintiff’s work capacity, he said that on a purely psychiatric ground alone, the plaintiff is not totally incapacitated for all work. He said he could not perform full-time suitable duties due to his current depressive syndrome/disorder. However, he probably has a partial capacity for suitable duties somewhere in the order of 0.4 to 0.6 equivalent full time. He said the plaintiff is still suffering from a moderate, work-related depressive syndrome/disorder and that his psychiatric prognosis is more uncertain and guarded. At best, his psychiatric prognosis is only fair. He said the plaintiff will remain prone, vulnerable and susceptible to an exacerbation or aggravation of his depressive disorder and thus, return of suicidal ideation and paranoid/persecutor ideation in the future.
Mr Peter Dohrmann
41 In February 2013, Mr Dohrmann, neurosurgeon, examined the plaintiff at the request of the plaintiff’s solicitor.
42 Mr Dohrmann said the plaintiff was suffering from chronic neck pain due to an aggravation of cervical spondylosis relevant to the claimed injury. His present symptoms consist of chronic neck pain and intermittent left referred arm pain without evidence of radiculopathy or myelopathy. He said the plaintiff should not be engaged in heavy physical work or work which involves repeated bending, twisting or lifting actions or which involves repetitive movements of the cervical spine, or work which requires him to look overhead. He said the restrictions are permanent.
43 Mr Dorhman said the plaintiff did not have a capacity to perform his pre-injury duties as a metal foundry worker which he expected to be permanent.
44 He said the plaintiff retained a partial work capacity of half-time light work capacity. He does not expect the plaintiff’s capacity for physical work will improve, given the multilevel cervical spondylosis which is a degenerative condition and likely to persist and may gradually worsen.
45 In relation to the plaintiff’s cervical spondylosis, he said it was uncertain as to why such a relatively young man would exhibit such widespread degenerative change in the cervical spine. Notwithstanding this, he was of the view that the plaintiff’s employment had contributed to an exacerbation of symptoms referrable to multilevel degenerative changes.
Dr H Sutcliffe
46 In March 2003, Dr Sutcliffe, occupational physician, examined the plaintiff at the request of the plaintiff’s solicitor. Dr Sutcliffe said the plaintiff sustained aggravation of degenerative change in the cervical spine as a result of the repeated heavy lifting in his workplace. It was her view the plaintiff had no capacity to undertake his pre-injury duties now or into the foreseeable future as a result of the aggravation of cervical spondylosis. She said he returned to work in a weighbridge but could not tolerate this because of increased pain with looking down at the computer. He provided a history of having limitation of computer work to 5 to 10 minutes. She said the plaintiff had developed some experience in restaurant work of minor kitchenhand work and waiting work, which had been in a protected employment in his father-in-law’s Turkish restaurant in Canberra. She did not believe the plaintiff had the capacity to undertake a full range of tasks as a waiter or front-of-house operator, nor could he undertake the tasks as a kitchenhand in open employment either on a full or part-time basis.
47 Dr Sutcliffe said the plaintiff had a capacity to work for limited hours in a protected employment, such as provided by his father-in-law, which should be limited to a maximum of four hours, four days per week. She said the plaintiff should be retrained to undertake another occupation, given his age, inability to undertake any manual handling and his limited capacity for work requiring neck flexion or repeated movement of the neck, as in clerical/computer-based work.
48 Dr Sutcliffe said the plaintiff’s prognosis was poor and that he is more likely than not to experience further deterioration in the cervical spine and a significant component of this is related to the aggravation.
The Defendant’s medical evidence
Mr Robert D Marshall
49 In May 2006, Mr Marshall, surgeon, examined the plaintiff at the request of the defendant’s insurer. He did not consider the plaintiff was suffering from an injury, work-related or otherwise. It was his opinion that the plaintiff’s degenerative changes through the cervical spine were causing the pain in his neck and pain over the distribution of the cervical nerves. He said the changes were not the result of injury, but rather of a premature age-related changes. He said the lifting muscles involved in the sort of tasks the plaintiff described were completely unrelated to the neck and no stress was placed on the neck by lifting. He said the plaintiff’s symptoms are likely to continue and he was currently unfit for work.
Mr Michael Shannon
50 Mr Shannon, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer in January and April 2007. Mr Shannon said the plaintiff had significant and widespread degenerative change in the cervical spine which is more than one would anticipate given his age. The plaintiff denied any previous history of injury, sporting activities or symptoms in his neck. Mr Shannon accepted that employment had resulted in aggravation of the degenerative change, but said there was no specific incident or injury. He said that he suspected the effects of aggravation had substantially ceased. He said the plaintiff had a current work capacity but was not fit for pre-injury duties, which he thought would be permanent, but was capable of light work which would include weighbridge operator or work which permitted him to vary his posture, avoid strenuous or repetitive use of his arms, heavy lifting or work above shoulder level.
51 He said that there were major discrepancies between observed and measured range of movements, which he thought was largely a non-organic component to his presentation.
Dr Victor Botvinik
52 In June 2007, Dr Botvinik, psychiatrist, examined the plaintiff at the request of the defendant’s insurer. It was Dr Botvinik’s opinion that the plaintiff was mentally healthy and not suffering from any diagnosable mental disorder of any type. He said he did not require any psychiatric treatment or psychological counselling.
Mr J Sinha
53 In September 2007, Mr Sinha, surgeon, examined the plaintiff at the request of the defendant’s insurer. Mr Sinha was of the view the plaintiff suffered from established disc degenerative disease of the cervical spine without neurological complications. He said it was reasonable to accept the pre-existing condition was aggravated at work. He said the plaintiff’s condition had stabilised.
54 Mr Sinha said the plaintiff was fit to perform various types of work but not necessarily the hard work of a manual labourer or in a foundry. He thought the plaintiff could work on a full-time basis and said that the return to work plan was appropriate, reasonable and well within the plaintiff’s physical capacity.
Dr Paul Kornan
55 In January 2012, Dr Kornan, psychiatrist, medically examined the plaintiff at the request of the defendant’s insurer. Dr Kornan diagnosed a Major Depressive Disorder which is work related. It was his view the plaintiff could not work on medical grounds due to physical factors, although his psychiatric state would add to whatever incapacity existed. He said the plaintiff should continue with his consultant psychiatrist and psychotropic medication for at least a further eighteen months and should attend his local doctor for support.
Mr Michael J Troy
56 In January 2012, Mr Troy, surgeon, examined the plaintiff at the request of the defendant’s insurer. He diagnosed multiple level disc degenerative changes of the plaintiff’s spine. He was of the view the impairment had stabilised.
Dr Anthony L G Smith
57 In May 2012, Dr Smith, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor. He noted that the both hands were work hardened, more marked on the right than the left. He formed the view the plaintiff was manufacturing physical signs. He said there was no organic illness that could produce the pattern of weakness the plaintiff exhibited. He said he could find nothing wrong with the plaintiff and that he was manufacturing physical signs but he had neck arthritis within normal limits.
58 He thought the plaintiff would continue to have episodes of symptoms from his cervical degenerative disease but would not require surgery. He thought he was fit to return to work, but imposed restrictions of avoiding overhead work which is repetitive or continuous.
59 In December 2012 Dr Smith re-examined the plaintiff and said he was fit for work and there were no particular restrictions he would impose. Further, there was no occupational, recreational, domestic activities that anyone with symptomatic cervical degenerative disease can engage in that is free of risk of aggravating the underlying process. He said the process was basically a pain in the neck.
Video Surveillance
60 Surveillance records show that the plaintiff was under surveillance for a total of 120.25 hours in December 2006; January, February, and April 2007; April 2012, July and November 2012. I was shown 143 minutes of surveillance film. The film did not show the plaintiff performing activities inconsistent with his evidence. I conclude the plaintiff was relatively inactive.[19]
[19]Ashley JA in Church v Echuca Regional Health (2008) 20 VR 566 at paragraph [98]
61 I was shown film of April 2012 which showed the plaintiff doing very little. He was not performing any strenuous activities. There was no evidence of him using his neck. The plaintiff was leaning. The plaintiff was at the restaurant: he did not smile, did not look happy and did not engage with customers.
62 In July 2012, the film showed the plaintiff leaning. There was no evidence of physical activity. He was shown sitting with others outside the café but he did not appear to be interacting with those people. His demeanour was morose, there was no animation and he did not smile. He was shown cooking but it was very limited cooking.
63 In November 2012, the film showed the plaintiff at the restaurant and the comments I have made in respect to the July film apply to the November film. I concluded that the restaurant did not seem a busy restaurant and there was nothing inconsistent with the plaintiff’s evidence. The surveillance film shown to me did not assist the defendant’s case.
The Plaintiff’s Credit
64 The plaintiff’s memory was exceedingly poor, to the point where he was unable to assist his own case. I accept his lack of memory was not self-serving. His lack of memory extended to his general personal circumstances such as the timeframes for when he sold property and the years when his children were born. The explanation for his poor memory was not clear. He had been educated in Australia to Year 12. It was not put to the Court that he was on medication that would have affected his ability to give evidence.
65 I gained the impression that the plaintiff did not understand the importance of providing answers to the questions put to him by counsel. I accept that giving evidence is stressful and may have contributed to his presentation. I accept that the plaintiff was a witness of truth but his memory was so unreliable I am reliant on the independent evidence, in particular the medical opinions. I reject the submission of the defendant that the plaintiff had a convenient and selective memory. That was not evident.
Analysis of the Evidence
The Physical Injury
66 Based on the medical evidence, I accept that the plaintiff suffered a compensable injury arising out of his employment with the defendant.
67 I accept the reasoning of the majority of the medical evidence that the plaintiff suffered chronic neck pain due to aggravation of cervical spondylosis, which involved a neck injury with referred pain in the shoulder and into the arms, which was work related. I refer to the opinions of Dr C Smith, Mr Han, Mr Dohrmann, Mr Shannon and Dr Sutcliffe. Mr Sinha said it was reasonable to accept the pre -existing condition was aggravated at work. In addition to the medical reports, I can take into account the Medical Panel Opinion dated 21 October 2006 which accepted that the plaintiff’s employment was a significant contributing factor to an aggravation of pre-existing cervical spondylosis.
68 In view of the majority of the medical evidence, I do not accept the views expressed by Dr Ugwu, Mr Marshall and Dr A Smith, who were in the minority. Dr Ugwu said there was no clear relationship between the plaintiff’s employment and the degenerative changes noted on imaging studies; however, Dr Ugwu did not obtain a history of neck injury during the plaintiff’s employment and it was unclear whether he had seen the MRI scans of June and December 2006.
69 Mr Marshall, saw the plaintiff on one occasion. He said the degenerative changes in the plaintiff’s cervical spine were causing the pain and the changes were not the result of injury. Dr A Smith, orthopaedic surgeon, said there was no restriction on the plaintiff being able to work and his degenerative changes were within normal limits. This is inconsistent with the opinions of Mr Dohrmann and Mr Shannon. Mr Dohrmann said, “It was uncertain as to why such a relatively young man would exhibit such widespread degenerative change in the cervical spine.” Mr Shannon said the plaintiff had “Quite significant and widespread degenerative changes in the cervical spine”.
70 Counsel for the defendant submitted that the plaintiff sustained a minor aggravation of pre-existing constitutional degenerative changes in the cervical spine, the effects of which had substantially recovered by the time he was medically examined by Mr Shannon in April 2007.
71 Upon all the evidence, I do not accept that submission. Mr Shannon’s opinion was that he suspected the effects of the aggravation had substantially ceased because the plaintiff had been off work or on light duties. Mr Shannon was the only medical witness who expressed this opinion and it is does not take into account the whole of the evidence. The evidence was that the plaintiff attended his general practitioner shortly after the injury. His general practitioner reported pain and tenderness in his neck with a restricted range of movement. He commenced physiotherapy, which he attended from October 2005 until February 2006. In March 2006, he reported to Dr Ugwu that his shoulder and neck pain had never settled and on examination, he had a restricted range of movement of his neck.
72 In May 2006, the plaintiff was referred to Mr Han, who reported that surgical intervention was not necessary. The plaintiff continued to work on modified duties and reduced hours, but stopped work because of difficulty with his neck and left shoulder pain. I do not accept that this evidence is consistent with the effects of the aggravation having substantially resolved.
73 Counsel’s submission also requires me to ignore what occurs in life, namely, after the onset of an injury, the effects can fluctuate.[20] Further, the courts have recognised that a minor injury can have serious consequences, and conversely, a major injury can have limited consequences.[21] In addition, the Act, by s135AC, by the terms of that section, recognises the concepts of separation in point of time between injury and ultimate consequences.
[20]Per Buchanan J in R J Gilbertsons v Skorsis (2000) 12 VR 386 at paragraph [25]
[21]Per Ashley JA in Brumar (Vic) Pty Ltd v Norris; Brown v Cashman (2010) 28 VR 665 at paragraph [108]
74 Counsel for the defendant submitted that disentanglement was an issue in this proceeding.
75 In Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis,[22] Maxwell P said at paragraph [9]:
[22][2007] VSCA 46
“For the assistance of judges, the applicable principles may be summarised as follows:
(1) Where an applicant for leave under s 134AB(16)(b) relies on physical injury — ‘permanent serious impairment or loss of a body function’ — the court in assessing the pain and suffering consequences must exclude ‘the psychological or psychiatric consequences’ of the injury: s 134AB(38)(h).
(2) Accordingly, so far as the evidence allows, the court must identify, and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis.
(3) The court must therefore exclude any pain and suffering consequences which result from or are a manifestation of:
•any recognised psychiatric condition (for example depression, adjustment disorder);
• chronic pain syndrome or disorder;
• functional overlay;
• exaggeration of symptoms, whether conscious or unconscious; or
• any other aspect of the injured person’s psychological response to the physical injury.
(4) Where the court is unable to ‘disentangle’ the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused, since the court cannot be satisfied on the balance of probabilities that the organically based pain and suffering consequences satisfy the statutory criterion (‘more than significant or marked, and … at least very considerable’: s 134AB(38)(c)).
(5) For the assistance of the court in deciding such matters, any medical witness who is of the opinion that there are both organic and non-organic contributors to the pain and suffering should be asked to quantify, so far as possible, the respective contributions to the pain and suffering of the organic and non-organic causes.
(6) The reasoning in Richards v Wylie has no application to proceedings under s 134AB.”
76 Accordingly, I must be satisfied, on the balance of probabilities, that the organically-based pain and suffering consequences satisfy the statutory criterion.
77 The Court must examine the consequences of a physical impairment in the separate context of:
(a)pain and suffering; or
(b)loss of earning capacity.
78 As stated, the provisions of s134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[23] The sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[24] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, for both pain and suffering and loss of earning capacity).[25]
[23]s134AB(38)(b), (c) and (d)
[24]s134AB(38)(e), (f) and (g) of the Act
[25]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
79 Accordingly, it is appropriate for me to look, first, at the various tests for loss of earning capacity which must be satisfied by the plaintiff in respect to the neck injury.
The Narrative Test – Loss of Earning Capacity
80 The current medical evidence in relation to the plaintiff’s neck was that of Dr Craig Smith, general practitioner; Mr Peter Dohrmann, neurosurgeon, and Dr H Sutcliffe, occupational physician. The medical evidence is that there has been an aggravation of a pre-existing condition in the neck.
81 The Court must consider what the evidence discloses as to the prior condition of the plaintiff, and determine whether the additional impairment resulting was “serious”. In Petkovski v Galletti,[26] the Full Court said that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment.
[26][1994] 1 VR 436
82 I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting after October 2005 was serious.[27] The evidence is that the plaintiff had been employed with the defendant as a foundry worker since mid-2005. The work was physically demanding. Prior to that, the plaintiff had worked as a production worker for approximately eight years, which was physical work. His general practitioner, Dr Craig Smith, said there was no evidence of any pre-existing neck problems before October 2005. The plaintiff’s evidence was that he was physically fit and active prior to the work injury. When examined by Mr Dohrmann, the plaintiff denied any prior history of neck or other injury but admitted that he was sometimes stiff and sore after a heavy day’s work. He stated he had never seen a doctor or been investigated for any spinal condition before October 2005.
[27]Petkovski v Galletti (supra)
83 In October 2005, after being injured at work, he complained of pain in his neck and left shoulder. He received anti-inflammatory medication and physiotherapy treatment. He had limited time off work and continued to work. He returned to modified duties and reduced hours, but went off work because of difficulty with his neck and left shoulder pain. The plaintiff resigned in September 2007. In August 2006, Mr Han, the treating neurosurgeon, said the plaintiff had no capacity for pre-injury duties and could not perform any repetitive heavy lifting.
84 I accept the plaintiff became symptomatic in relation to his neck injury and left shoulder because of his work in October 2005.
85 The current medical evidence expressed by Dr Craig Smith, Mr Dohrmann and Dr Sutcliffe is that the plaintiff has no capacity for pre-injury work, which is likely to continue for the foreseeable future.
86 In April 2013, Dr Craig Smith said the plaintiff was unfit for work generally, with no current work capacity and no capacity for pre-injury duties, which is likely to be present indefinitely, as there has been no improvement over the eight years since the plaintiff presented with his injury.
87 Mr Dohrmann said the plaintiff, as a consequence of the exacerbation of cervical spondylosis and the accompanying chronic neck symptoms, does not have a capacity to perform his pre-injury duties as a metal foundry worker, which he said is permanent.
88 Dr Sutcliffe said the plaintiff has no capacity to undertake his pre-injury duties now or into the foreseeable future as a result of the aggravation of cervical spondylosis he sustained.
89 Both Mr Dohrmann and Dr Sutcliffe believed the plaintiff had capacity for some employment. Mr Dohrmann said the plaintiff had capacity for suitable employment. He said the plaintiff could perform light work, half-time, similar to the work he was performing in Canberra in the Turkish restaurant.
90 Dr Sutcliffe said the plaintiff had no capacity for alternate duties in the foundry where lifting, twisting and turning is required, or where neck flexion, twisting and turning of the neck is required. She was aware that he returned to work in a weighbridge but could not tolerate this because of increased pain when looking down at a computer. He provided her with a history of having limitation of computer work to five to ten minutes. She was aware the plaintiff had developed some experience in restaurant work of minor kitchenhand work and some waiting, but accepted that his work in his father-in-law’s Turkish restaurant in Canberra was protected employment. She did not believe the plaintiff had capacity to undertake the full range of tasks as a waiter or front house operator. Nor did he have the capacity to undertake tasks as a kitchenhand in open employment on either a full-time or part-time basis. She concluded that the plaintiff had capacity to work for limited hours in protected employment, which should be limited to a maximum of four hours, four days per week.
91 The defendant submitted that the plaintiff was offered work as a weighbridge control box operator and he unreasonably failed to participate in a rehabilitation program and suitable duties on a return to work program. Counsel for the defendant said this was because the plaintiff wanted to work in the family business in Canberra. I accept the evidence of Dr Sutcliffe that such employment would not be suitable. Dr Sutcliffe is an occupational physician and by her expertise, is qualified to comment on whether or not an individual has a capacity to do particular work.[28] Relying upon the evidence of Mr Dohrmann and Dr Sutcliffe, I accept that the plaintiff could work sixteen hours a week; Mr Dohrmann said in suitable employment and Dr Sutcliffe confined the plaintiff’s work to a protected environment.
[28]Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at paragraph [96]
92 The plaintiff is aged thirty-eight years. Most of his employment has involved heavy manual work. The evidence is that he continued to work despite his injuries. In fact, Dr Smith expressed surprise that the plaintiff continued working until April 2006. The medical evidence is that the plaintiff can no longer engage in heavy physical work, or work which involves repeated bending, twisting or lifting actions or which involves repetitive movements of the spine and looking overhead. This is the type of work the plaintiff engaged in with the defendant. Dr Sutcliffe agreed with Mr Dohrmann, but said the plaintiff only had limited capacity for work requiring neck flexion or repeated movement of the neck as in clerical or computer-based work. The plaintiff told doctors that he would like to work and, in fact, attempted to work in protected employment provided by his father-in-law.
93 I am satisfied that the plaintiff cannot return to physical work, the work which he was doing prior to the injury, which was well paid. He has few transferrable skills. The plaintiff is aged 38. In view of the plaintiff’s age, I accept this represents a significant loss to him.
94 I am satisfied that it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being more than “significant” or “marked” and properly described as “considerable” when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments. I am satisfied that the plaintiff’s injuries are permanent, given the medical evidence, and that it has continued since 2005.
95 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The Statutory Test – Loss of Earning Capacity
96 It is not in contention that the plaintiff’s “without injury earnings” figure is $1,571 gross per week. Sixty per cent of that figure is $943 gross per week. The medical evidence of Mr Dohrmann is that the plaintiff could work half-time, which would amount to 20 hours per week. Dr Sutcliffe estimated 16 hours per week in a protective situation. In cross-examination, the plaintiff agreed that the value of his services would be about $20 per hour in the restaurant business. Based on the hourly rate of $20 per hour, I accept that the plaintiff would have to work 47.15 hours per week to earn $943. Accordingly, I conclude that the plaintiff has greater than 40 per cent loss.
97 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g) of the Act. Dr Sutcliffe, the occupational physician, said that retraining may assist the plaintiff. No retraining has been offered or provided by the defendant. I am required to assess the application on the current position. There was no evidence that rehabilitation would assist the plaintiff. Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per or more.
98 Therefore, I am satisfied the plaintiff satisfied the 40 per cent requirement and has sustained an injury within s134AB of the Act.
99 The above position is reached purely by reference to the plaintiff’s physical condition. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
100 In view of my findings in relation to the physical injury, it is not necessary for me to consider the plaintiff’s claim under paragraph (c) of the definition of serious injury to be found in s134AB(37) of the Act.
101 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering and loss of earning capacity is successful.
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